Citation Nr: 0330207
Decision Date: 11/04/03 Archive Date: 11/13/03
DOCKET NO. 00-22 488 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas
THE ISSUES
1. Entitlement to service connection for sexual dysfunction.
2. Entitlement to service connection for left shoulder
bursitis.
3. Entitlement to service connection for arthritis of the
knees.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from December 1964 to
December 1968.
This matter comes before the Board of Veterans' Appeals
(Board) partly from an October 1999 RO decision which denied
service connection for sexual dysfunction and for arthritis
of the knees. The veteran also appealed a March 2000 RO
decision which determined that new and material evidence had
not been submitted to reopen a previously denied claim for
service connection for bursitis of the left shoulder. In
February 2003, the Board issued a decision which found that
new and material evidence had been submitted, and reopened
the claim for service connection for left shoulder bursitis.
The Board then developed additional evidence as to the issues
of service connection for sexual dysfunction, left shoulder
bursitis, and arthritis of the knees.
The present Board decision addresses the issue of service
connection for sexual dysfunction. The issues of service
connection for left shoulder bursitis and for arthritis of
the knees is addressed in the remand portion of this
decision.
FINDINGS OF FACT
The veteran's current sexual dysfunction, diagnosed as
impotence, was caused or permanently worsened by his service-
connected diabetes mellitus.
CONCLUSION OF LAW
Impotence is proximately due to or the result of a service-
connected disability. 38 C.F.R. § 3.310 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that service connection is warranted for
sexual dysfunction on a secondary basis due to his service-
connected diabetes mellitus. As to this issue, there has
been adequate VA compliance with the notice and duty to
assist provisions of the law. 38 U.S.C.A. §§ 5103, 5103A; 38
C.F.R. § 3.159.
Service connection may also be established on a secondary
basis for a disability that is proximately due to or the
result of a service-connected condition. 38 C.F.R.
§ 3.310(a). Secondary service connection includes instances
in which there is an additional increment of disability of a
non-service-connected disability due to aggravation by an
established service-connected condition. Allen v. Brown, 7
Vet. App. 439 (1995).
In this case, the veteran served on active duty in the Navy
from December 1964 to December 1968, including service in
Vietnam. His service medical records are silent as to any
sexual dysfunction. Post-service treatment reports,
beginning in 1992, show complaints of and treatment for
sexual dysfunction.
In October 2001, a VA physical examination was conducted. It
was noted the veteran had a history of sexual dysfunction
since 1992 due to low testosterone levels. He indicated that
he had not been able to have in erection in the past four or
five years. The VA examiner noted that this was prior to the
veteran having been diagnosed with diabetes mellitus, so that
most likely the reason for his impotence was multi-factorial.
The examiner also stated that, even so, it could be that
diabetes could worsen the symptoms.
In August 2002, the RO granted service connection for
diabetes mellitus (as due to Vietnam herbicide exposure).
In July 2003, a VA genitourinary examination was conducted.
The examiner diagnosed the veteran with sexual dysfunction
(impotence). It was noted that the veteran had signs and
sumptoms of diabetic neuropathy. The VA examiner opined that
it was at least as likely as not that the veteran's impotence
was due to his service-connected diabetes mellitus.
The medical evidence of record tends to support a finding
that at least an increment of the veteran's current sexual
dysfunction is secondary to his service-connected diabetes
mellitus, as contemplated by the Allen theory of secondary
service connection by way of aggravation. With application
of the benefit-of-the-doubt rule, 38 U.S.C.A. § 5107(b), the
Board finds that such is the case, and thus secondary service
connection for impotence is granted.
ORDER
Secondary service connection for impotence is granted.
REMAND
The remaining issues on appeal are service connection for
left shoulder bursitis and for arthritis of the knees. In
February 2003, the Board started to develop additional
evidence on these issues, in accordance with the authority
granted by 38 C.F.R. § 19.2(a)(2) (2002), and a related VA
examination was done in July 2003. However, a recent court
decision invalidated the regulation which permitted the Board
itself to develop evidence. Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003). Under the circumstances of this case, the RO should
initially review the additional evidence as to these issues.
Accordingly, these issues are remanded to the RO for the
following action:
After assuring there has been compliance
with the notice and duty to assist
provisions of the law, the RO should
review the claims for service connection
for burisitis of the left shoulder and
for arthritis of the knees. If the
claims are denied, the RO should provide
the veteran and his representative with a
supplemental statement of the case, and
give them an opportunity to respond,
before the case is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
______________________________________________
L.W. TOBIN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
?
In the section entitled "Representation before VA," filing
a "Notice of Disagreement with respect to the claim on or
after November 18, 1988" is no longer a condition for an
attorney-at-law or a VA accredited agent to charge you a fee
for representing you.